POINT OF VIEW. Donald Trump surrounded by business
Donald Trump has to face several cases, criminal and civil. Can he self-amnesty? Will he ever go to jail? Point of view of Anne Deysine (*), professor emeritus at Paris Nanterre University.
Donald Trump is literally surrounded by business today, both civil and criminal. Some are linked to his actions as president, starting with possible obstructions to justice revealed by the Mueller report. They come under federal law. Others, dating from before his accession to the White House, which relate to his behavior towards several women who accuse him of sexual assault fall under state criminal law. Still others, which concern its financial activities, are also subject to state law and, in particular, to the law of the State of New York, the seat of most of its companies (although some of them have their registered offices). in Delaware, a state known for its pro-business tax laws).
The New York Times has revealed that the billionaire has paid just $ 750 in income tax for several years in a row, which could lead to prosecution for tax evasion. In this context, and as one would expect from him, the one who is still president until January 20, 2021 uses and abuses - for his relatives, while perhaps waiting to do it for himself - of a very particular prerogative: the right of pardon.
The perversion of the right of pardon
Under the Constitution, the right of pardon is a broad power that belongs to the president and has only two exceptions: cases of impeachment, and limitation of the scope to federal crimes and misdemeanors. A possible pardon would therefore protect the individual Donald Trump from prosecution by the State of New York or possible sexual assault trials.
But Trump's 44 graces and commutations are on another scale; it is a self-centered, self-centered systematic exercise. Before leaving the White House, President Trump plans to pardon certain members of his family in order to protect them from possible prosecution, as well as his relatives, such as Rudi Guiliani or Steve Bannon, who have contributed directly or indirectly to his multiple turpitudes, before or during the presidency. If pardoned, they could not be indicted or made to agree to a guilty plea in exchange for incriminating testimony against Trump.
Donald Trump is aware of these various Damocles swords. Since 2018, he has repeatedly claimed to have the right to self-amnesty. He does not hesitate to claim that he is above the law, which is contrary to Anglo-Saxon tradition and to what the Supreme Court said in US v. Nixon in 1974, then repeated in 2020 in the two Mazars and Vance decisions: No one is above the law. The first problem with a possible self-amnesty is that one cannot indeed be both judge and party, and that pardon would immediately be challenged in court. No case law exists, but a 1974 memo issued by the Office of Legal Advice (OLC) replied in the negative.
The risk of prosecution is real even in the scenario where Trump resigns so that his vice president, who has become president, can pardon him. One thinks, of course, of the precedent of President Ford pardoning Richard Nixon, but there is a big difference: Nixon had resigned even before the Judiciary Committee passed the articles of impeachment. Donald Trump was indeed indicted by a majority of the House of Representatives. And the political cost would be high for Mr. Pence.
On paper, nothing would prevent President Biden from pardoning his predecessor if he wanted, as President Ford did in 1974, to go ahead and get the country out of the crisis. But there is the obstacle of impeachment and, above all, it would be unacceptable to the left of the Democratic Party; finally, the person concerned, far from being grateful, would undoubtedly use it to hammer home that this is a sign of Joe Biden's guilt ("who knows he cheated") and his weakness.
No prison for Donald Trump?
Will Donald Trump ever go to jail? This seems unlikely because he knows how to drag things out and will be able to deal in private matters, and probably also with the Attorney General of New York. Remember that in the United States, in both criminal and civil matters, only 2 to 3% of cases go to trial. The others end in a guilty plea or a settlement. The advantage of an amicable settlement is that the terms are not known, so the president can claim he has won and stay in the news, his main concern along with rebuilding his finances. We know from The New York Times that it has $ 400 million in debt that is coming due.
More broadly, the question of the legal risks weighing on a Trump who has become an ordinary citizen again, including questions about a possible recourse to presidential pardon, are only the tip of an iceberg of accusations of crimes and misdemeanors, related or no to corruption, allegedly guilty of Trump and his relatives and which were only discovered thanks to the investigation of Special Prosecutor Mueller, when they are most often unpunished.
Are we going to see a series of legislative reforms like after the Watergate affair? What will be the role of the Ministry of Justice that the elected president has announced that he wants to be independent and not partisan? These are two crucial questions for Donald Trump's successor.
(*) Anne Deysine is the author of The Supreme Court of the United States (Dalloz, 2015) and The United States and Democracy (L’Harmattan, 2019).
